Don’t sleep on it….

21 February, 2014
by: Cripps Pemberton Greenish

The recent case of Whittlestone v BJP Home Support Limited has brought into question what workers should be paid if they ‘sleep over’ at their place of work.

This case involved an employee who was required to work ‘sleep over’ duties, during which time she was never actually required to carry out any work, but was required to remain present. She was paid an allowance for these sleep in duties, which equated to less than the national minimum wage (NMW) for each hour that she was required to be present. The employee brought a claim in respect of her pay, which went to the Employment Appeal Tribunal (EAT).

The EAT held that where an employee is required to stay in the place of the work, the fact that the employee is required to be present at work amounts to work itself and the employee should be paid at least the NMW for each hour she was required to be present, even if the employee isn’t carrying out ‘actual work’ for the entire time and is in reality able to sleep for the duration of the shift.

Prior to this case, a distinction was drawn between a job where a worker’s core duties required them to work at night (such as a night-watchman), entitling them to NMW for the entire of the night shift, and a job where a worker is required to be at the place of work ‘on call’ in addition to their core duties during the day, only entitling them to NMW for the time they are actually working.

There is scope for the case to be appealed, though this is looking unlikely. Distinctions could also be drawn in future cases where workers’ time is considered ‘unmeasured’ under the National Minimum Wage Regulations 1999.